MISC LAND APPLICATION 14992 of 2024 SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 14992 OF 2024 KESSY SHABAN JUMA as administrator of The estate of the late SHABAN JUMA.................................................................................... APPLICANT VERSUS DEODATUS FAUSTINE MVULA as administrator of the estate of the late FAUSTINE MVULA.....................1st RESPONDENT RAHA WATER LIMITED.............................................. 2nd RESPONDENT RULING 25/7/2024 & 26/8/2024 A. MSAFIRI, J. The matter at hand has been brought under Section 11(1) of the Appellate Jurisdiction Act Cap 141 R.E 2019 and Section 21 (10) & (2) of the Law of Limitation Act, Cap 89 R.E 2019. The applicant herein is seeking for the orders that this court be pleased to grant extension of time to file Notice of Appeal against the ruling of the High Court of Tanzania (Land Division) in Land Case No.8 of 2010. The application is supported by an affidavit deponed by the applicant himself. The respondents also filed their counter affidavits contesting the application. The counter affidavit by the 1st respondent was deponed by i the 1st applicant himself while the one of the 2nd respondent was sworn by Edward Peter Chuwa, advocate of the 2nd respondent. The hearing was conducted by written submissions whereby the applicant's submission in chief and rejoinder was drawn and filed by Mr. Daibu Kambo, learned advocate for the applicant, the reply submission by the 1st respondent was drawn and filed by Mr Andrew Kanonyele, learned advocate for the 1st respondent while the 2nd respondent reply submission was drawn and filed by Mr. Edward Peter Chuwa, learned advocate. Mr Kambo for the applicant started his submission by praying to adopt the contents of his affidavit to form part of his submissions. He said that the applicant intends to challenge the decision of this court in Land Case No. 8 of 2010 which was delivered in 20/5/2016. That after the decision was delivered, the applicant filed a Notice of Appeal and successfully filed Civil Appeal No 82 of 2020 in the Court of Appeal of Tanzania. Mr Kambo submitted further that the said appeal was struck out by the Court of Appeal of Tanzania on 03/6/2024 due to the preliminary objection raised by the counsel for the 2nd respondent. That the Court of Appeal held that the appeal was time barred and thus struck out the entire appeal. All ■ 2 The counsel for the applicant averred that once an appeal is struck out, the Notice of Appeal is also struck out and that this position was held in the case of Mohamed Suleiman Mohamed vs. Amne Salum Mohamed &11 others, Civil Appeal No. 87/2019, CAT at Zanzibar (Unreported). He argued that the applicant is still determined to lodge an appeal to the Court of Appeal and that since the Notice of Appeal was struck out by virtue of Civil Appeal No. 82 of 2020 being struck out, the appeal cannot be re-instituted without filing a Notice of Appeal. He added that the delay in filing the Notice of Appeal is one of technical delay as it was not intentional. That since the applicant has shown diligence in filing Civil Appeal No. 82 of 2020, but it was struck out, it is for the interest of justice that time be extended so that he can file a Notice of Appeal. He prayed that the application be granted as prayed. In reply, Mr Kanonyele prayed to adopt the contents of the affidavit deposed by the 1st respondent. He submitted that the application is devoid of merit for want of sufficient grounds to support it. He said that the applicant has failed to account for each day of delay. That the applicant has not accounted for over 30 days of delay in filing Notice of Appeal and have not elaborated the alleged technical delay in filing the said Notice. 3 He argued further that the applicant has stated that from 09/4/2020 to 03/6/2024, he was pursuing Civil Appeal No. 82 of 2020 whose Notice was filed on 05/7/2016 which was late for more than 30 days from the date of the ruling which is 20/5/2016 and it ought to be filed by 19/6/2016. Mr Kanonyele added that the applicant has failed to account for each day of delay from 20/5/2016 when the decision of Land case No. 8 of 2010 was delivered to 05/7/2016 when the purported Notice of Appeal was filed. He supported his arguments by citing the case of DSM City Council vs. Group Security Co. Ltd, Civil Application No. 234/2015, CAT at DSM where it was held that the in application for extension of time, the applicant has to account for each day of delay. He prayed for the dismissal of the application with costs. Mr Chuwa for the 2nd respondent also started his submission by adopting the contents of counter affidavit deposed by him. He submitted that the applicant has failed to account for each day of the delay from the date of the ruling and drawn order i.e. on 20/5/2016 to the date of the Notice of Appeal i.e.05/7/2016. That the applicant has purposely omitted to state that the first Notice of Appeal was filed out of time i.e. 45 days after the impugned Ruling. That the applicant is supposed to account for each day 4 of delay i.e. from 20/5/2016 to the date of filing of this application. That the applicant has tried to mislead the court that days should be accounted from the date of institution of appeal which was struck out by the Court of Appeal on 03/6/2016 by excluding the days he spent in prosecuting the said appeal. To cement his points, the counsel cited the case of Finca (T) Limited and another vs. Boniface Mwalukisa, Civil Application No. 589/12 of 2018 where the Court of Appeal emphasized the requirement of accounting for every day of delay. In rejoinder, Mr Kambo reiterated his submission in chief and added that the Civil Appeal No. 82/2020 was struck out on 03/6/2024 for being incompetent. That this makes the delay to be a technical one and the counting should start from 03/6/2020 as the time before that is accounted by the fact that the applicant was prosecuting Civil Appeal No. 82/2020. Having carefully considered the rival submissions by the parties along with contents of the affidavit in support of the application, and the counter affidavits contesting the application, the issue is whether the application is tenable in such way that the applicant has managed to establish good cause for his prayers to be granted by the Court. JU] L . 5 The applicant in this matter prays for the extension of time to file a Notice of Appeal to the Court of Appeal out of time after being dissatisfied with this court's decision in Land Case No. 8 of 2010. The extension of time is purely the court's discretion, however for the court to exercise its discretion for extension of time, good cause must be shown. It follows therefore that the applicant is required to show good cause before the court can grant an extension of time. This is provided under Section 14(1) of the Law of Limitation Act. This mandatory principle has been elaborated further in numerous authorities both by this Court and the Court of Appeal. In the case of Benedict Mumello vs. Bank of Tanzania, Civil Appeal No. 12 of 2002 the Court of Appeal held that: "It is trite law that an application for extension of time is entirely in the discretion of the court to grant or refuse it, and that the extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause" It is not disputed by the parties that the applicant successfully lodged an Appeal No 82 of 2020 which was struck out for being out of time by the Court of Appeal on 03/6/2024. Therefore in my view, the applicant has diligently prosecuted his case from 20/5/2016 when this court delivered its decision in Land Case No. 8 of 2010 which was dA 6 subject to the appeal before the Court of Appeal to 03/6/2024 when his appeal was struck out for being time barred. Still pursuing for what he believes, the applicant intends to knock again the doors of the Court of Appeal hence he is seeking to file the Notice of Appeal out of time. It is my view that since Civil Appeal No. 82/2020 was struck out for being time barred, then the applicant is not expected to start his count for delay from the date the decision of Land Case No. 8 of 2010 was delivered since he has already been punished by the Court of Appeal when the appeal was struck out for being time barred. If this court will subject the applicant to counting the days before the striking out the appeal by the Court of Appeal, it will be punishing the applicant twice. I agree with the counsel for the applicant's submission that the counting for the days of delay should start from 03/6/2024 when the Court of Appeal strike the Civil Appeal No. 82/2020 for being time barred. I find the circumstances in this application falls squarely under the provision of Section 21 of the Law of Limitation Act. Section 21(2) of the said Act provides as follows:- JW * * 7 21(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance or in the court ofappeal, against the same party, for the same relief, shall be excluded where such proceeding is prosecuted in good faith, in a court which, from defect ofjurisdiction or other cause ofa Hke nature, is unable to entertain it (emphasis added). At paragraphs 13,14, and 15 of the applicant's affidavit, the same has counted for days of delay. He said that the decision of Court of Appeal striking out the appeal was delivered on 03/6/2024. On 05/6/2024, he applied for a copy of the order of the Court of Appeal, on 18/6/2024 the court order was supplied to him. That from 19/6/2024 to 24/6/2024 the applicant was preparing the chamber summons and uploading the application. I have seen in the court online system that this application was filed on 25/6/2024. Basing on the above analysis, I find that the applicant has managed to account for the days of delay and this being a technical delay, I proceed to grant the application as prayed. The intended notice of appeal to the Court of Appeal to be filed as prayed subject to the time limitation as per the law. Costs shall be in the main cause. It is so ordered. W L* 8 A.MSAFIRI JUDGE 26/8/2024 9